Recent advances in neuroscience have expanded how the law and society in general define “disability” to include “antisocial” behaviours such as addiction or aggression. Given these changes, does the law need to change too, in order to adequately protect people with a disability?

This is the question that Dr Karen O’Connell and Professor Isabel Karpin from UTS’s Faculty of Law are in the midst of answering, as part of a four-year project funded by the Australian Research Council.

“The law currently struggles to see vulnerability when it exists in tandem with aggression or seemingly ‘antisocial’ behaviour,” says O’Connell.

“There’s a lack of understanding or there’s hostility around that idea that someone who’s behaving badly may have some right to protection because of that. That’s a very confronting idea for a lot of people.”

The Disability Discrimination Act was amended in 2009 and now refers explicitly to behaviour that is a manifestation of a disability.

“It covers both the behavioural disability itself and any behaviour that arises from having a disability, so it should protect people with challenging behaviour,” she says. “In practice it often doesn’t.”

For their project, Karpin and O’Connell are conducting surveys and in-depth interviews with disability advocates and people living with disabilities, including autism spectrum disorder (ASD), conduct disorders and personality disorders.

People on the autism spectrum experience high rates of unemployment, a problem that can be based in earlier issues such as getting an inadequate education or facing discrimination at work.

At the same time, Karpin and O’Connell are also looking at how the law applies to reproductive screening — preimplantation genetic diagnosis (PGD). For example, some couples who have a family history of ASD select a female over a male embryo, to avoid the child developing the disorder — even though the evidence on whether screening out male embryos will avoid ASD is inconclusive.

“More recent research has shown that girls may be under-diagnosed with ASD,” says Karpin. “And if we’re selecting against male embryos on the basis of poor science, then there’s a real problem there about what kind of choices we’re offering people.”

O’Connell agrees that what appears to be a scientific approach to disability can actually mask stereotyping and discrimination, unless we pay closer attention to assumptions that feed this approach.

“We are trying to look at how inclusive the current law is in regard to disabilities. We are applying both the scientific and the legal approaches to determine what is beneficial to people with disabilities across the board,” she says.

The other dimension the researchers will look at is moving the legal focus off the individual with the disability and onto the relevant institution, such as a school, workplace or hospital.

“The experience of disability discrimination is often like sex or race discrimination; diffuse and cumulative rather than a single incident. We need to become a more tolerant society,” O’Connell says.

Gathering evidence from the different facets of their research, Karpin and O’Connell hope to make recommendations about how the Disability Discrimination Act and other laws can be amended.